Destroy / damage property – s 195 of the Crimes Act 1900

• Section 194(1) of the Crimes Act 1900 defines property as something that is ‘of a tangible nature’.

• Section 4(1) of the Crimes Act 1900 defines it more broadly as:
  •  ‘every description of real and personal property’ including ‘money, valuable securities, debts and legacies.’

In the High Court decision, Grajewski v Director of Public Prosecutions (NSW) [2019], the majority of judges held that:

“As a matter of ordinary English, to damage a thing means to injure or harm the thing in some way that…lessens the value of the thing; a thing is not damaged if the physical integrity of the thing is not altered in any respect.” At [13]

Further, section 194(4) of the Crimes Act 1900 provides that:

• “Damaging property includes removing, obliterating, defacing or altering the unique identifier of the property.”

• The maximum penalty for this offence is 5 years imprisonment
  • (6 yrs if done in the company of another person.)

• Where fire damages or destroys the property, the maximum penalty increases to 10 years.
  • 11 yrs if done in the company of another person.)

Please note that the most serious cases attract the maximum penalty.

This option is recommended only where you accept that you:

• damaged or destroyed property that belonged to another person; and that
• damage was done intentionally or recklessly.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court exercises a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
  • This is the most common penalty for the offence of AOABH.
• Community Corrections Orders (“CCO”)
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this offence, the Prosecution must establish beyond a reasonable doubt that you:

• damaged or destroyed property that belonged to another person; and that
• damage was done intentionally or recklessly.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Self-defence: Property was damaged or destroyed while defending yourself, your own property (it was yours), or another person.
• Duress: circumstances or the threats of another compelled you to act in the manner you had. 
• Necessity: Your actions were necessary to prevent a greater harm from occurring
• No intention: The property was damaged accidentally (and without any recklessness.)